Disparate Impact Claims

Disparate impact refers to an employer’s practices or policies that impact women differently than men. Such policies or practices are said to be "facially neutral," meaning that they are not intended to discriminate, but nonetheless negatively impact women. A common example would be weight and height requirements that preclude women from being hired for a particular job, even though weight and height do not necessarily dictate an ability to function in that job.

What kinds of claims can be brought as a disparate impact claim?

Some of the most common types of disparate impact claims are failure to hire and failure to promote claims. In these claims, the employer’s policy for hiring or promoting disadvantages women. Other examples of disparate impact claims may relate to pay increases, pregnancy, transfers, training programs, leadership programs, and firing policies.

I think that a company policy adversely affects me because of my gender, how do I prove it?

You must show that your employer’s facially neutral policy adversely affects women. For example, a court found that height and weight requirements for hiring professional baseball umpires illegally barred almost every single female applicant.

What is the difference between disparate impact and disparate treatment?

Disparate impact focuses on an employer’s practice or policy that seems to be nondiscriminatory, but when applied, unnecessarily discriminates against women. Disparate treatment pertains to the actual treatment of female employees that is less favorable than the treatment of other similarly situated male employees.

Are there times when an employment policy or practice may legally impact women differently than men?

In rare instances, an employer’s policy may legally impact women disproportionately. This happens in situations where sex is considered a bona fide occupational qualification (BFOQ). A BFOQ legitimately exists when your employer can show "that all or substantially all women would be unable to perform safely and efficiently the duties involved."

What could my employer do to deny my allegations, and how do I respond to its denials?

Once you have shown that your employer’s policies have a disproportionate impact on women, your employer has the opportunity to show that the policy in question is related to job performance by proving it is a bona fide occupational qualification. If your employer is able to show that the policy is a BFOQ, you have a chance to then show that there is an alternative method or policy which could accomplish your employer’s job-related purpose with a less discriminatory impact on women.